In the meantime, the indictments fueled a sense of solidarity among those opposed to the war. Resist, the organization of older supporters that evolved out of the Call to Resist Illegitimate Authority, quickly issued a complicity statement: “We stand beside the men who have been indicted for support of draft resistance. If they are sentenced, we, too, must be sentenced. If they are imprisoned, we will take their places and will continue to use what means we can to bring this war to an end.” Signers included the Rev. Dr. Martin Luther King Jr., Noam Chomsky, Robert McAfee Brown, Dwight Macdonald and Howard Zinn.
By the time the trial began, on May 20, observers had plenty of reason to believe that the Boston Five would go to prison. The presiding judge, Francis Ford, age 85, who had been appointed to the federal bench by his Harvard classmate Franklin Roosevelt, used a pretrial hearing to limit the defendants’ strategy of vigorously debating the merits of the war and the draft. Neither, he said, was relevant to the facts of the case.
The defendants faced a dilemma: If they could not put the war on trial, what was the point? They considered standing silent, withholding participation in the trial. But legal advisers convinced the five that they needed to mount a full defense, if only to resist what they considered the abuse of conspiracy charges and forestall additional indictments. Consequently, defendants who started out hoping to win a political victory against the war found themselves waging a civil libertarian defense that quickly bogged down.
Testifying in their own defense, Spock and Ferber did their best to discuss the horrors of the war and the injustice of the draft system, but most of their case got tied up in legal knots. While prosecutors focused on the persuasive power of the defendants — in effectively urging and persuading draft resisters to break the law — the defense responded that they were only stating their opinions, exercising their First Amendment right of free speech. It rang hollow.
On June 14, at the end of a nearly monthlong trial, the jury found Spock, Coffin, Goodman and Ferber guilty of conspiracy, each facing a sentence of up to two years in prison and a fine up to $5,000; Raskin was found not guilty. A year later, an appeals court overturned the convictions because it saw Judge Ford’s charge to the jury